Case No. UKUT-00338-(IAC)

19.In their skeleton argument for the applicant, Ms Weston KC and Mr Greene of counsel submit that the relevant paragraphs of the order of 23 June 2022 ought to be set aside under rules 5(2) and 6(5) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the Procedure Rules”) because, in summary:(i)Paragraph 2 of the order extends beyond the power provided to the Upper Tribunal by the Procedure Rules; it is contrary to Articles 8 and 10 ECHR; it is inadequately reasoned; or it represented an unlawful exercise of the Tribunal’s discretion.(ii)Paragraph 3 of the order is too broad and ill-defined to be proportionate, sufficiently clear and specific to be capable of fair and effective compliance, or consistent with the duty of candour in public law. (iii)Paragraph 4 of the order should be set aside as a result.20.For the local authority, Mr Harrop-Griffiths indicated in his skeleton argument that the application to set aside the relevant paragraphs of the order was opposed on the basis that there was nothing wrong with the directions, which were made in order to assist the Upper Tribunal in determining the probable age and date of birth of the applicant. 21.In the event, we heard limited submissions on the application. It was confirmed to us by Mr Greene and Mr Harrop-Griffiths, both of whom had appeared at the Case Management Hearing on 23 June 2022, that there had been no application made at that hearing for specific disclosure or inspection of any social media material. Mr Harrop-Griffiths stated that there had in fact been no mention of Facebook at that hearing and that the applicant had already provided the respondent with copies of two photographs which had been sought by way of specific disclosure. 22.We were able to indicate in light of that confirmation that we were prepared to set aside the relevant paragraphs of the order and that we would give our reasons for doing so in a reserved judgment. We invited counsel to agree an order which would stand in place of those paragraphs. Counsel in due course agreed that an order which provided materially as follows would stand in place of those paragraphs:(2)The Applicant's solicitor shall by 4pm on 25 August 2022 conduct a proportionate search of: a.the Applicant's private Facebook profile page, “About Me”; b.the Applicant's timeline; and,c.the date the account was opened and shall disclose any information relevant to the issues in the application including but not limited to i.the date the Facebook account was opened;ii.any date of birth given in the “About Me” profile page; and, iii.if it is recorded, the location of the Applicant when the account was openedand shall certify in writing that the foregoing search has been duly completed and material disclosure provided.(3)The Respondent to make any application for specific disclosure to be filed and served by 4pm on 1 September 2022.23.We approved the order at the hearing and a sealed copy was sent to the parties. We nevertheless invited submissions from Ms Weston and Mr Harrop-Griffiths on the process which might be followed in such cases in the future. 24.Ms Weston submitted that it was inherently problematic for an order to be made in the terms set out at (2)-(4) of the order of 23 June. It appeared that the order was made as a matter of course, as was suggested in the witness statement made by Mr Taylor. Whilst she accepted that the Tribunal’s role in Age Assessment proceedings was an inquisitorial one, she submitted that a more refined approach was necessary. She submitted that directions for specific disclosure were to be made on the application of a party and for proper reason. The test was always whether, in the given case, such disclosure appeared to be necessary in order to resolve the matter fairly and justly. 25.Ms Weston accepted, firstly, that there could be no objection to an initial direction that an applicant should file and serve a list of the social media platforms he used. She accepted, secondly, that some assistance as to the procedure to be followed might be gleaned from that adopted in CPR Practice Direction 31B (Disclosure of Electronic Documents), to which Mr Harrop-Griffiths had referred at [16] of his skeleton argument. Ms Weston accepted, thirdly, that a solicitor’s duty of candour in proceedings such as these extended to ‘scrolling through’ an applicant’s Facebook and other accounts in order to ascertain whether they contained any material which furthered his case or which were, or appeared to be, adverse to his case. She noted, however, that children were not always discerning and that there was a need in any given case to consider their best interests and their privacy.26.For the respondent, Mr Harrop-Griffiths noted that the duty of candour and the standard directions which were made as a matter of course in such cases should reveal any relevant social media or other such material which bore one way or another on an applicant’s age. He accepted, however, that this was clear to expert solicitors and counsel undertaking this niche area of practice and that it would assist other practitioners to provide some guidance on the questions which might properly be asked in such cases. Terminology27.In the Civil Procedure Rules, standard disclosure requires a party to disclose the documents on which he relies; the documents which: (i) adversely affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s case; and the documents which he is required to disclose by a relevant practice direction: CPR 31.6 refers.28.‘Document’ in this context has an extended meaning. By CPR 31.4, it means anything in which information of any description is recorded. The same definition appears in rule 1(4) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 and in rule 1(3) of the Tribunal Procedure (Upper Tribunal) Rules 2008.29.‘Disclosure’ in this context has a specific meaning. By CPR 31.2, a party discloses a document by stating that the document exists or has existed, which might include making reference to a document in a witness statement: